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Domestic Partnerships Update

The domestic-partnerships bill in the house currently has 56 cosponsors. Provided it gets out of committee and then passes the rules committee, it only needs 50 votes to pass on the floor.

The domestic-partnerships bill in the senate currently has 21 cosponsors. (Yesterday, the Senate Goverment Operations and Elections Committee held a hearing on the bill.) If it gets out of committee and then the rules committee, it needs 25 votes in the full senate to pass. It’s just four votes away.

Basically, we’re four votes away from a domestic-partnership bill for gays and lesbians… and um, het seniors.

The rights and duties being afforded by
"domestic partnership" under SB 5336 are significantly less than those which are specified by a marriage.

The argument that heterosexual couples can simply get married to obtain the rights and duties of "domestic partners" simply does not hold water.

There are significantly more obligations incurred by married spouses, than by registered domestic partners.

Among other things:

(1) Practically everything that married couples get during their marriage is community property.

(2) A marriage can only be terminated by a dissolution lawsuit. This litigation can be resolved by agreement within 90 days, but can also be prolonged and expensive. Only after this litigation is finally resolved is the marriage terminated and the partners free to re-marry.

(3) A spouse in a marriage can receive spousal maintenance (alimony) under appropriate economic circumstances.

These rights and duties can be viewed as either a benefit or a burden in a marriage, depending upon whose ox is being gored. Many heterosexual couples do not marry, because they do not want these benefits and burdens.

Obviously, homosexual couples cannot marry under present Washington law. SB 5336 is designed to provide SOME, but NOT ALL, of the benefits of marriage to homosexual couples.

The problem with SB 5336 is that the "domestic partnership" is not available to a heterosexual couple generally.

Under SB 5336, homosexual couples in a domestic partnership will have certain major differences from a marriage:

(1) Property during the relationship is not community property.

(2) The domestic partnership is automatically terminated without litigation, upon payment of a small filing fee and 90 days notice. Or it can be immediately terminated by either partner entering into a heterosexual marriage!

(3) Neither partner has the right to spousal maintenance or alimony.

There is no basis for giving homosexual couples special privileges under SB 5336 that are not available to heterosexual couples.

This is a different analysis than the prohibition of homosexual marriage. The State Supreme Court ruled that allowing homosexual marriage would somehow threaten heterosexual marriage, that heterosexual marriage was extremely important, and therefore it was constitutional to prohibit homosexual marriage.

Many people on here will disagree with the 2006 Andersen v. King County ruling by the Washington Supreme Court, which allowed the ban on same-sex marriage to stand as constitutional.

However, there is no logical legal argument that can support allowing "domestic partnerships" for homosexual couples, while prohibiting them for most heterosexual couples:

2. Nor can you say that having homosexual domestic partnerships would be more important to society than having heterosexual marriages.

And this bit about allowing heterosexual domestic partnerships when one of the partners is over 62 years of age, but not otherwise, also makes no sense whatsoever.

People under 62 years of age also die, and could use simplified estate distribution to the other partner without a will. They also can be admitted to hospitals and have serious illnesses.

And there are lots of reasons why people under 62 might not want to legally marry. (The reason why the bill allows this for heterosexual couples over 62 is stated to be different treatment of married persons for social security and certain pension programs.)

If someone is a single parent with children, getting married may eliminate the earned income credit, and also significantly increase federal income tax liability. (There is no longer a marriage penalty for two "single" status people getting married, but the situation is different when either person is "head of household" status.)

If a single parent lives with another adult, that other adult's income is not counted for government assistance programs, unless the couple has children in common. So the single parent may continue to qualify for welfare, food stamps, and medicaid (especially medicaid for children). But if they get married, the entire income for the couple is counted, and they may no longer qualify for this government assistance.

AND THE CITY OF SEATTLE ALLOWS "DOMESTIC PARTNERSHIP" FOR ALL COUPLES -- NOT JUST HOMOSEXUAL COUPLES!

"The City of Seattle's Domestic Partnership Registration program is a means by which unmarried couples in committed, on-going family relationships, may document their relationships. This recognizes the diversity of family configurations, including lesbian, gay and unmarried heterosexual couples (and their children), and unmarried elderly partners."

Why is there this desire on the part of Senator Murray for triumphal in-your-face discrimination in favor of homosexuals?

As I said before, marriage imposes many obligations on heterosexual couples, and many heterosexual couples do not choose to incur these obligations. Not to mention loss of tax benefits and government benefits for many heterosexual couples who choose to marry.

The argument that heterosexuals can legally marry is no justification for requiring them to get married in order to enjoy the benefits available to homosexual domestic partners.

The justification for denying "domestic partnership" rights to heterosexuals in the proposed legislation is downright hypocritical -- i.e. blaming this on the fact that homosexuals cannot get married.

It would take precisely the same vote -- 50 in the House, 25 in the Senate, signature of Governor -- to allow homosexual marriages, as it would to allow "domestic partnerships" (whether these are allowed for everyone, or only for all homosexuals and certain select heterosexuals).

So the legislature cannot use the legal ban on homosexual marriages to justify banning most heterosexual domestic partnerships. If the legislature wanted to allow homosexual marriages, it could do so.

Many people say that banning homosexual marriages is a terrible form of discrimination. The "domestic partnership" bill will institutionalize a far worse form of discrimination, and affect practically the entire population, instead of just a small minority.

Basically, a "domestic partnership" will become a second-class form of homosexual marriage. A less serious type of marriage, with many of the benefits and very few of the binding commitments.

If the homosexual partners are happy with each other, then they will have almost all the benefits of being married -- including automatic inheritance without a will and all the hospital and health care benefits.

But if one homosexual partner wants to ditch the other, it will be really easy. No litigation. $50 filing fee. Only 90 day waiting period, and it is guaranteed to be over with. Your property won't go to your partner in a community property division. You won't have to pay alimony to your partner. You don't have to hire a lawyer, or worry about a judge making you pay for your partner's lawyer.

And it sure isn't going to make heterosexuals happy either. Opponents of homosexual marriage will probably get this one qualified for a referendum or initiative -- no foolish reliance on Tim Lie-man this time!

And it will play into their arguments that homosexual marriage is a bad thing:

1. No binding commitments for homosexuals in a "domestic partnership".

2. The homosexuals aren't allowing this easy, convenient "domestic partnership" for most heterosexuals.

Senator Ed Murray's triumphal in-your-face discrimination (no "domestic partnership" for most heterosexuals) will backfire in a major way.

You clearly have commitment issues since apparently you won't marry your girlfriend and would rather "domestic partner" her. I’m sure she’s thrilled. I'd be happy to marry my partner of nine years if it were legal.

I guess I'll be happy if the bill passes, but it seems kinda backward since our next door neighbor, British Columbia, legalized marriage equality back in 2003(!).

Richard is right on several counts, regardless of his status as a loon. The fundies are going to see this as marriage light and will oppose it both because it waters down traditional marriage if it gets expanded to hets, and because it benefits gay and lesbian families - and they hate that more than anything. And we all know how noisy they can be. It remains to be seen if they have enough political cred left in this state though to stop it.

And DP's are a 'seperate and not equal' cop out on giving gay and lesbian families equal rights, responsibilities and protections. Though I agree with the gay reps that by doing this piecemeal they highlight just how important and extensive full marriage rights are for everyone.

John -- which is precisely why "domestic partnerships" need to be available to all unmarried adults who desire to enter into them.

Allowing them only for homosexuals actually strengthens the constitutional justification for banning same-sex marriages. While making many other matters worse, as a matter of practical politics.

There are certain reasons why banning same-sex marriage is considered constitutional. No point in discussing them -- if the Andersen ruling had been different, then there would be no need for a domestic partnership bill for homosexuals. And if Andersen had been different, then domestic partnerships only for homosexuals would be clearly unconstitutional.

The legislative justification for homosexual-only domestic partnerships is that homosexuals can't get married. And the same legislature that would pass homosexual-only domestic partnerships would also be implicitly (if not explicitly) determining that the ban on homosexual marriage should continue.

Therefore, the same constitutional justification that is presently used to ban homosexual marriage would have to be used to support, by extension, a ban on most heterosexual domestic partnerships.

I can see Attorney General Rob McKenna making these types of arguments in court to support the constitutionality of denying domestic partner rights to homosexuals:

1. The institution of heterosexual marriage is extremely important, especially to protect children.

3. Homosexual domestic partnerships are okay. Homosexuals can't have children by biological interaction of the two homosexual partners. Yes, one partner can biologically have a child. But adoption (and court supervision) is required in order for that child to become legally the child of both partners. And this process will protect children.

4. It is okay for heterosexuals where at least one partner over age 62 to enter into domestic partnerships. These are very unlikely to produce children biologically. Women over 62 almost never can have children. A man over 62 can, but in most cases the female partner will be passed child-bearing age. And in any event, there can be benefits (i.e social security, pension) to folks over 62 not getting married.

Richard may or may not be a loon, but his ranting raises an interesting question: why is there nothing in SB 5336 regarding distribution of property after the termination of a domestic partnership?

While decisions from the Washington State Supreme Court and the courts of appeals (Connell v. Fransico, Vasquez v. Hawthorne ) can be combined to make a strong argument that community property distribution should occur after dissolution of a same-sex meretricious relationship, the Supreme Court in the Pennington case set forth rather strict criteria for determining whether a relationship is meritricious.

Accordingly, without a mention in SB 5336, the courts may evaluate property distribution after termination of domestic partnerships as a type of meretricious relationship. Under Pennington's strict criteria, not every domestic partnership would qualify for equitable distribution of community property.

On the other hand, courts might use an entirely different doctrine to deal with dissolutions of domestic partnerships (e.g. treating all domestic partnerships as "partnerships" and then equitably dividing "partnership" or "community" property, see In re Thorton's Estate ) separate and apart from the standards for meretricious relationships.

Support for this argument could be found in Section 27 of SB 5336, which allows a domestic partner to collect all of the "net community estate" upon the death of the other domestic partner. This indicates that there is "community property" of some sort between domestic partners. I think it is likely courts would find community property to exist upon termination of domestic partnerships as well.

However, it is odd that SB 5336 makes no mention of community property in termination/divorce/dissolution situations. Maybe I just missed it in my cursory reading of the bill? Does anyone know? Also, I might be missing something in my interpretation of current law as it applies to domestic partnerships.... again anyone know?

If I didn't misread, the Stranger should inquire into this issue as it seems that the less fortunate same-sex couples will have to pay for legal services to draft community property agreements, which is something that married couples don't need to do. On the other hand, perhaps this signals that most of the people who want domestic partnerships also DON'T want equitable distribution of community property????

Oh... and RP is also right to question the lack of control over community property during marriage (who can sell it, mortgage it etc without the other partner's consent).

I think it's really funny that you guys are seriously referencing our Washington State Supreme Court.

There was a time when I considered myself a valued citizen of this state with all of the rights and responsibilities that implies. And then Barbara Madsen came along and shattered that illusion completely by using the same language in her ruling that racist, bigoted judges in the South used to uphold segregation and bans on inter-racial marriage. She turned equal protection in this state into a despicable, hypocritical sham, not to mention contradicting her own published views on the subject (see Josh Feit's excellent article on her duplicity in "Dishonor Roll").

These laws against marriage equality aren't about contracts or divisions of property, blah, blah, blah. They're pure emotion. It's about power and being able to tell one group of people that the majority hate you and condemn you for their own specious reasons.

It really boils down to fear and hate. Who cares what words on a page say? The Washington State Supreme Court has proven that they're meaningless, anyway.

I don't know Richard -- even though he may be a little loony, he does seem to be thorough...

Ed Murray was on Monson on KIRO this afternoon and his answer to the (several) questions about "why no Heterosexual Partnerships" seemed to boil down to "Well, since gays can't get married we are going to create a bill specifically for them (as well as those oldsters) and screw the rest of you." That's some solid governing, Ed...

The position being taken by Ed Murray would be exactly equivalent logically to a having a law that prohibited unrelated unmarried opposite sex couples from spending the night in a hotel room together, while allowing same sex couples to spend the night together without restrictions.

Murray could justify such a law, by saying that a man and a woman can get legally married. Therefore, they should have to get legally married before sharing a hotel room together.

On the other hand, two people of the same gender cannot legally get married to each other. Therefore, Murray could say it should be okay for them to share a hotel room together in all cases, even if they are going to be engaging in sex with each other, since they cannot get legally married.